Two Related Posts By Seth Barrett Tillman

Part 3: More On Why The Senate Has Not Defaulted On Its Purported Constitutional Duty

Part 4: Why Senate Inaction As A Response To A Presidential Nomination Is Constitutional

I link to Seth’s posts because he is a friend and his ideas are generally worth paying attention to.

10 thoughts on “Two Related Posts By Seth Barrett Tillman”

  1. I am going to laugh my silly ass off when Hillary, or perhaps the Bern, appoints a left wing monster. If you had a chance for a reasonable guy, and threw that away because of the republican/tea party idea of government, as obstruction, it will be very funny indeed.

    You will not be electing a Republican this time.

  2. “If you had a chance for a reasonable guy”

    Garland is not “a reasonable guy.” But I wouldn’t expect you to know.

  3. I am very frustrated with this whole situation. When we have to worry about the health, lifespan, or politics of judges it should be a sign to us that something is seriously wrong with the institution. The judicial system has accumulated far too much power, and has exercised that power, as men inevitably will, without wisdom or restraint, or democratic accountability.

    There have been a lot of proposals made to decrease the power of individual justices by imposing term limits, or increasing the size of the court. I think those proposals are worth considering. There have been some proposals to make appointment or retention of justices subject to a popular vote. I am not very enthusiastic about those. Looking at the trouble we are having finding suitable presidential candidates, and the expense of national campaigns, I am not sure I want to handle the Supreme Court that way.

    As an institution, it think the legal system has a number of very deep rooted problems. Some of them are internal, but hard to change in any reasonable time frame. One of those institutional problems is the transformation of legal education from an apprenticeship to an academic system. That transformation in turn allowed the slow poison of German Philosophy to infuse its way into the legal system. The doctrine called legal realism came from that source.

    Legal realism claims that when deciding cases, judges reach their conclusions based on their political and social ideas, and then use the language of the law to sell their decisions. As the Red Queen said: “Sentence first – verdict afterwards”.

    It will no doubt puzzle scholars of future ages that American legal academics could insist on legal realism and the wonderfulness of Supreme Court Opinions in their favorite cases.

    But, changing the system of legal education and seeing its effects is the work of generations. That does not mean it is not worth doing, but that even if we do it, the effects will be along time coming, and the Supreme Court will have done even more damage than they have already done.

    I have been thinking about things that Congress could do by law to limit the power of the courts without amending the Constitution.

    First, the Supremacy Clause (Art VI) makes the Constitution, that Laws and the Treaties the supreme law of the land. The Laws are the bills passed by Congressm (see Art I §7). The judgments of the courts are interpretations of those laws, they are not laws themselves. Congress should make it clear that a judgement binds only the parties to the judgment, not third parties, and is not a law. The rules of precedent, authority, and stare decisis should be declared dead.

    Congress could change a number of procedural rules that would clip the courts’s wings; for instance abolishing declaratory judgments and most class actions, over-ruling the doctrine of collateral estoppel, and revising Rule 11 to allow lawyers to file pleadings regardless of previous judicial pronouncements.

    Another lane would be for Congress to reinstate many of the rules about standing, ripeness, and adverseness that the Court once declared, and has since abandoned. Those rules should be declared to be jurisdictional.

    Congress should re-assert its power under §5 of Am XIV to be the sole source of remedies under that amendment.

    I am sure that there are other ideas that should be pursued. I encourage you to think of them.

  4. “Pengun: aren’t you a canuck?”

    Indeed I am. I had thought the Supreme Court was one of the three pillars of checks and balance. You want to change that?

  5. “proposals made to decrease the power of individual justices by imposing term limits,”

    California has such a proposal for a referendum after some years. I forget how many. It was a token until Jerry Brown appointed Rose Bird, a radical leftist and another far leftist to the CA supreme court. Both were rejected in a retention election. That was the only time I am aware of such a rebellion and it was when California was far more sensible.

  6. Mike: I remember that incident. Did they stop doing them, after that?

    Retention referenda strike me as a poor deal, on one hand they take the sting out of the criticism of judicial activism that it is undemocratic, on the other hand, they can easily deteriorate int $#;+ shows.

    I don’t think a lot more of judicial elections like we run in Ohio. They become about little more than name recognition or ethnic tribalism. In Ohio, for years, your family name had to be Brown. The voters elected some guy named Brown once, but they could never tell the difference between him and the other browns for years. Or maybe it was Paul Brown, the great football coach who started the trend. As for tribalism, Republicans couldn’t go up against the unions until they started running women.

  7. “Republicans couldn’t go up against the unions until they started running women.”

    This is why Obama and Co have not tried to enforce the employer mandate in Obamacare. The unions would revolt.

  8. “pengun: go play in the snow.”

    I would love to. We had none this year as well as last year. Global warming is obvious here, almost summer conditions already and I do not envy those who live in less ideal climates.

    I have to take baby Baby up the hill on the logging roads, some 3000′ to find some snow. I will take my granddaughter up there soon, she loves playing in snow.

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